National High School Civics Standard 18:Understands the role and importance of law in theAmerican constitutional system and issues regardingthe judicial protection of individual rights. (4) Knowshistorical and contemporary illustrations of the idea ofequal protection of the laws for all persons (e.g., theFourteenth Amendment . . . ).

National High School Civics Standard 25:Understands issues regarding personal, political, andeconomic rights. (1) Understands the importance toindividuals and to society of . . . the right to . . . equalprotection of the law.

California History-Social Science Content Standard12.5: Students summarize landmark U.S . SupremeCourt interpretations of the Constitution and itsamendments. (1) Understand the changing interpreta-tions of the Bill of Rights over time, including interpre-tations of . . . the due process and equal-protection-of-the-law clauses of the Fourteenth Amendment.

Preparation

Standards AddressedObjectives

Overview

Students will be able to:

• Explain why Gore demanded a recount inFlorida.

• Explain the two lawsuits brought followingthe election and what the courts decided.

• Express a reasoned opinion on which of thepublished opinions in Bush v. Gore is themost reasonable.

• Apply the reasoning in the court’s opinion inBush v. Gore to hypothetical election cases.

Reading in the student text: “Bush v. Gore(2000),” pp. 85–89

Activity in the student text: “Applying Bush v.Gore,” pp. 89–90

This lesson looks at Bush v. Gore, the U.S. Supreme Court case that decided the 2000 election.

First, students read about and discuss the Supreme Court case of Bush v. Gore. Then in small groups,students role play Supreme Court justices and apply Bush v. Gore to hypothetical election cases.

Bush v. Gore (2000)

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VocabularyBelow are vocabulary words from this lesson. Their pronunciations and definitions can be found in theGlossary, which begins on page 91 of the student text.equal protection oral agrument per curiam precedentreverse statute writ of certiorari

ProcedureI. Focus Discussion

A. Hold a brief discussion on the 2000 election by asking students:

• Who were the candidates in the 2000 election?

The main candidates were Democrat Al Gore (the vice president), Republican George W.Bush (the Texas governor), and the Green Party’s Ralph Nader.

• Which candidate got the most votes?

Gore. His popular vote total was more than 500,000 votes greater than Bush’s.

• Why then did Gore not win?

He did not win the Electoral College. Bush got more electoral votes.

• How does the Electoral College work?

Each state has the same number of electors as it has members in the House ofRepresentatives and the Senate. In most states, the winner of the popular vote wins all ofthat state’s electors.

B. Tell students that the Supreme Court played a major role in determining the winner of the ElectoralCollege in the 2000 election.

II. Reading and Discussion—Bush v. Gore (2000)A. Ask students to read “Bush v. Gore (2000),” pages 85–89. Ask them to look for:

• The two lawsuits brought following the election and what the courts decided.• The reasoning of all the opinions in Bush v. Gore.

B. When students finish reading, hold a discussion using the questions on page 89.

1. In the 2000 election, what did the first count of Florida’s votes show? On what basis did AlGore demand a recount? What did the machine recount show?

The first count of Florida’s votes showed that Bush had received 2,909,135 votes and Gorehad received 2,907,351 votes.

Gore demanded a recount under Florida law that provides for a recount if the election isdecided by less than one-half percent of the votes cast.

The machine recount narrowed Bush’s lead to 327 votes.

2. What happened when Gore demanded a manual recount? Do you think a hand recount is moreaccurate than a machine recount? Explain.

When Gore demanded a manual recount, Bush sued in federal district court to block it.His request was denied, but Florida’s secretary of state declared that she would enforce theNovember 14 deadline for counties to submit their vote totals, and she would not acceptlate recounts from counties in Florida.

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As for whether a hand recount is more accurate than a machine recount, accept reasonedresponses.

3. A lawsuit was brought to demand an extension of time to report the results of the handrecount. This case ended in a decision by the U.S. Supreme Court on December 1. What deci-sions were made by the trial court, Florida Supreme Court, and U.S. Supreme Court? Which ofthese decisions do you think was correct? Why?

The trial court ruled in favor of the secretary of state, allowing her to decline enforcementof the extended deadline to accept late recounts from counties in Florida.

The Florida Supreme Court unanimously reversed the trial court and ordered that the secretaryof state accept hand recounts from the four counties if completed by 5 p.m., Sunday, November26, or Monday morning. The court held that there must be time for doing the recount becauseby refusing, the state completely negated the statute that expressly provided for recounts.

The U.S. Supreme Court remanded the case to the Florida Supreme Court for clarification.This is not in the article, but the court said it was unclear whether the Florida court’s decisionwas based on its interpretation of the Florida Constitution or the Florida statute.

As for which of these decisions was correct, accept reasoned responses.

4. Gore brought another lawsuit on November 27. What were the grounds for this suit? How didthe trial court rule? The Florida Supreme Court? The U.S. Supreme Court? A concurring andfour dissenting opinions were also written in Bush v. Gore. Which of the opinions—court, con-curring, or dissenting—seems most reasonable? Why?

Gore brought suit under a Florida statute providing that receiving illegal votes or rejectinglegal votes that may change or place in doubt the result of the election are grounds forcontesting.

The trial court ruled against Gore on the grounds that Gore failed to prove a “reasonableprobability” that the election would have turned out differently if not for problems incounting ballots.

The Florida Supreme Court reversed the trial court’s ruling because the trial court hadused the standard of “reasonable probability.” The court held that the appropriate stan-dard was a showing of receipt of number of illegal votes or rejection of a number of legalvotes sufficient to change or place in doubt the result of the election. Based on this stan-dard, the court ordered a counting of all of the uncounted votes in Florida.

The U.S. Supreme Court held that counting the uncounted ballots without standardsdenies equal protection and counting could not continue because Florida wished to chooseits electors by the “safe harbor” date set by federal law.

The various opinions were as follows:

Court’s Per Curiam Opinion: Counting the uncounted ballots without standards deniesequal protection.

Chief Justice Rehnquist Concurring: Florida Supreme Court changed Florida’s electionlaw by authorizing open-ended further proceedings that could not be completed by thescheduled deadline thereby preventing a final determination by that date.

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Justice Stevens Dissenting: The procedure created by the Florida Supreme Court wouldprevent unequal treatment of like ballots because a trial judge would resolve disputed bal-lots. The court should send the case back to Florida to create standards for counting.

Justice Souter Dissenting: The case presented no significant federal question, so the mattershould have been left to the state to decide.

Justice Ginsburg Dissenting: There was no denial of equal protection and the appropriatesolution was to send the case back to Florida for the counting to continue.

Justice Breyer Dissenting: Although there were equal protection problems with countingvotes without standards, the count should have sent the case back for counting with stan-dards instead of ending the counting.

III. Small-Group Activity—Applying Bush v. Gore

A. Tell students Bush v. Gore has sparked new legal challenges to elections. Inform them that they aregoing to role play justices of the U.S. Supreme Court and decide one of these cases. Divide the classinto six groups. Try to make sure that each group has an odd number so that a majority decisioncan be made without the possibility of a tie. Assign each a case.

B. Review with students “Activity: Applying Bush v. Gore” on pages 89–90. Answer any questions stu-dents may have.

C. When the groups finish, call on the group with the case from State A. Ask group members toexplain the case. Then have them explain whether an equal protection violation exists and why.Finally, if they have found an equal protection violation, ask them what remedy they think isappropriate. Hold a class discussion. Repeat this process for the remaining cases.

Each of these cases presents a pretty good argument that different standards were used eitherin counting or allowing ballots. Accept reasoned answers on this issue. The more difficultissue is what remedy is best in each case. Some suggestions for the remedies are below, butagain accept reasoned responses.

State A. The remedy might be to do a manual recount of all the punch card ballots.

State B. The remedy is difficult since some people voted and others were turned away. It lookslike the only remedy is a drastic one: Hold another election and set the standards. Or thecourt could do nothing and let the election stand.

State C . The remedy is difficult. If the provisional ballots still exist, the court could order allof them counted even if they were not turned into the proper precinct. Otherwise, the courtcould do nothing and let the election stand.

State D. Another difficult remedy. It seems the only remedy would be to hold the electionagain using sufficient voting machines. Or do nothing and let the election stand.

State E. Yet another difficult remedy. One possibility seems to be to deny all provisional ballots,but this seems incredibly unfair. Another remedy is again the drastic one of holding the electionagain with everyone using the proper standards. Or do nothing and let the election stand.

State F. Again, the only remedy seems the drastic one of holding the election again with morevoting machines being provided. Or do nothing and let the election stand.

D. Debrief the activity by asking: Do you think elections, given the number of people involved, willalways have disparities? If so, what should be done to minimize disparities?

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The 2000 election was one of theclosest in U.S. history. Democrat AlGore won the popular vote, butRepublican George W. Busheventually won the electoral vote.

Bush v. Gore (2000)

The Contested Election of 2000

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On December 12, 2000, the U.S. Supreme Court for the first time in American history essentiallydecided a presidential election with its ruling in Bush v. Gore. The day after the Supreme Court’s

ruling, candidate Al Gore conceded defeat to George W. Bush.

The Events Leading Up to Bush v. GoreThe presidential election of Tuesday, November 7, 2000, was one of the closest in U.S. history. By earlyWednesday morning, it was clear that the Democratic candidate, Vice President Al Gore, had won thenational popular vote, but the outcome of the electoral vote was uncertain. The presidency turned onFlorida and its 25 electoral votes. Early on election night, the networks called Gore the winner inFlorida, only to retract their prediction later in the evening. In the early hours of Wednesday, November8, the networks declared Bush the winner of Florida and the presidency, only to recant that a short timelater and to conclude that the outcome in Florida, and thus of the national election, was too close tocall.

On November 8, the Florida Division of Elections reported that Bush had received 2,909,135 votes and Gorehad received 2,907,351 votes. Florida law provides for a recount of votes if the election is decided by less than

because it completely negated the statute thatexpressly provided for them.

Bush appealed to the U.S. Supreme Court. OnFriday, November 24, the day after Thanksgiving,the U.S. Supreme Court granted certiorari andscheduled oral argument for the following Friday,December 1. In an unprecedented order, thecourt permitted the broadcasting of the oralargument immediately after it was finished. Afew days later, in Bush v. Palm Beach CountyCanvassing Bd., the U.S. Supreme Court sent thecase back to the Florida Supreme Court for clari-fication of its earlier decision.

Meanwhile, on Sunday, November 26, some coun-ties asked for additional time to complete theircounting. The secretary of state refused allrequests for extensions. On Sunday night,November 26, the Florida Elections CanvassingCommission certified the election results. Bushwas determined to be the winner of Florida by537 votes and thus the winner of Florida’s 25electoral votes.

On Monday, November 27, Gore filed suit inFlorida under the Florida law on contesting elec-tion results. This provision, Section 102.168(3) (c),provides that “[r]eceipt of a number of illegalvotes or rejection of a number of legal votes suf-ficient to change or place in doubt the result ofthe election” shall be grounds for a contest. Thestatute authorizes a court finding successfulgrounds for a contest to “provide any reliefappropriate under such circumstances.”

On Saturday and Sunday, December 2 and 3, aFlorida state trial court held a hearing onwhether Gore had met the statutory requirementsfor a successful contest. On Monday, December4, the Florida trial court ruled against Gore onthe grounds that Gore failed to prove a “reason-able probability” that the election would haveturned out differently if not for problems incounting ballots.

The Florida Supreme Court granted review andscheduled oral arguments for Thursday,December 6. On Friday afternoon, December 7,the Florida Supreme Court, by a 4 to 3 decision,

one-half of a percent of the votes cast. Because thedifference in votes between the two candidates wasless than one-half of a percent, Gore immediatelyasked for a machine recount of the tally of votes infour counties: Volusia, Palm Beach, Broward, andMiami-Dade. Florida law set November 14 as thedeadline for county vote totals. On November 9,Florida’s Secretary of State Katherine Harrisdeclined to extend this deadline. By this point, themachine recount had narrowed Bush’s lead to amere 327 votes.

Upon learning of the close margin between himand Bush, Gore petitioned and received permis-sion to have a hand recount in the four countiesin question. On Saturday, November 9, Bush suedin federal district court to block the manualrecount, but his request was denied.

Secretary of State Harris, however, declared thatNovember 14 was the deadline for counties tosubmit their vote totals and that she would notaccept late recounts. She said that the Floridaelection statute required counties to report theirvotes within one week of the election.

A suit was brought against Harris in Floridacourt to compel her to accept the time for thereporting of the results. On Friday, November 17,the Florida state trial court ruled in favor ofHarris. On Monday, November 20, the FloridaSupreme Court held a nationally televised hear-ing. On Tuesday night, November 21, the FloridaSupreme Court unanimously reversed the trialcourt and ordered that the secretary of stateaccept hand recounts from the four counties ifthey were completed by 5 p.m., Sunday,November 26, or Monday morning, if the secre-tary of state was not open for business onSunday afternoon.

The Florida Supreme Court ruled that Florida’ssecretary of state abused her discretion in refus-ing to extend the deadline for certifying electionsto provide the needed time for the recounts. Tocarry out the law allowing recounts, the courtconcluded that there must be time for doing therecount. The court said that the secretary ofstate’s refusal to accept hand recounts was wrong

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On Monday, December 11, the U.S. SupremeCourt held oral arguments. Again, they werebroadcast immediately after their completion.On Tuesday night, December 12, at approximate-ly 10 p.m., Eastern time, the court released itsopinion in Bush v. Gore.

The DecisionIn a per curiam opinion, the Supreme Courtruled 5 to 4 that counting the uncounted ballotswithout standards denies equal protection andthat counting could not continue becauseFlorida wished to choose its electors by theDecember 12 “safe harbor” date set by federallaw. The per curiam opinion was joined by ChiefJustice Rehnquist and Justices O’Connor, Scalia,Kennedy, and Thomas.

The court said that the central problem was thatthe Florida Supreme Court ordered counting theuncounted ballots, but failed to prescribe stan-dards. The per curiam opinion stated: “The prob-lem inheres in absence of specific standards toensure its equal application. The formulation ofuniform rules to determine intent based on theserecurring circumstances is practicable and, weconclude, necessary.” The court said that thisresults in similar ballots being treated differently.

reversed the trial court. The Florida SupremeCourt ruled that the trial court had used thewrong standard in insisting that Gore demon-strate a “reasonable probability” that the electionwould have been decided differently. The FloridaSupreme Court said that the statute requires onlya showing of “[r]eceipt of a number of illegalvotes or rejection of a number of legal votes suf-ficient to change or place in doubt the result ofthe election.” The Florida Supreme Courtordered a counting of all of the uncounted votesin Florida.

Just hours after the Florida Supreme Court’sdecision, on Friday night, December 8, a Floridatrial court judge ordered that the counting of theuncounted votes commence the next morningand that it be completed by Sunday afternoon,December 9, at 2 p.m. The judge said that hewould resolve any disputes.

On Saturday morning, counting commenced asordered. At the same time, Bush asked the U.S.Supreme Court to stay the counting and grantcertiorari in the case. In the early afternoon onSaturday, the U.S. Supreme Court, in a 5 to 4 rul-ing, halted the counting of the votes in Floridapending its decision.

2000 Presidential Election Results

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in place on November 7, and authorized open-ended further proceedings which could not becompleted by December 12, thereby preventing afinal determination by that date.”

The DissentsEach of the four dissenting justices wrote sepa-rate dissents. Justice Stevens, joined by JusticesGinsburg and Breyer, challenged the per curiam’spremise that there was a denial of equal protec-tion. He argued that the procedure created by theFlorida Supreme Court, with a trial judge resolv-ing disputes, could prevent unequal treatment oflike ballots. He explained: “Admittedly, the use ofdiffering substandards for determining voterintent in different counties employing similarvoting systems may raise serious concerns. Thoseconcerns are alleviated—if not eliminated—by thefact that a single impartial magistrate will ulti-mately adjudicate all objections arising from therecount process.” Justice Stevens said that if thelack of standard for counting is the problem thesolution is to send the case back to Florida tocreate standards for the subsequent recount.

Justice Souter’s dissenting opinion, joined by theother three dissenting justices, objected to thecourt hearing the case at all. Justice Souterargued that no significant federal issues wereraised and that the case should have been left tothe Florida courts to resolve.

Justice Ginsburg’s dissent argued that there wasno denial of equal protection and that in anyevent, the appropriate solution was to have thecase sent back to Florida for the counting tocontinue.

Finally, Justice Breyer acknowledged that there wereequal protection problems with counting voteswithout standards, but argued that the court waswrong in ending the counting rather than sendingback the case for counting with standards. Hestressed that the December 12 deadline was notsome magic date. States could still choose theirelectors after that date and could be confident thatCongress would recognize them.

The court thus concluded that counting theuncounted ballots as ordered by the FloridaSupreme Court would deny equal protection:“The recount process, in its features heredescribed, is inconsistent with the minimum pro-cedures necessary to protect the fundamentalright of each voter in the special instance of astatewide recount under the authority of a singlestate judicial officer.” The court explicitly statedthat it was deciding just the matter before it andwas not setting a general precedent. The per curi-am opinion declared: “Our consideration is lim-ited to the present circumstances, for the prob-lem of equal protection in election processes gen-erally presents many complexities.”

The court then confronted the key question:Should the case be sent back to the FloridaSupreme Court for it to set standards for thecounting or should the court order an end to thecounting process? The court, in its per curiamopinion, noted that federal law requires the selec-tion of electors to be completed by December 12and Florida indicated that it wished to observethe December 12 date. The court thus ordered anend to the counting.

Chief Justice Rehnquist wrote a separate opinionconcurring in the judgment. Justices Scalia andThomas joined this opinion. The Rehnquistopinion argued that the Florida Supreme Courthad impermissibly changed Florida’s election lawin a manner that violates federal law. The federallaw in question was Section 5 of 3 U.S.C., whichprovides that the state’s selection of electors“shall be conclusive, and shall govern in thecounting of the electoral votes” if the electors arechosen under laws enacted prior to election day,and if the selection process is completed six daysprior to the meeting of the Electoral College.Chief Justice Rehnquist said that this prevents astate from changing its electoral process after theelection and that Florida’s Supreme Court haddone this by usurping the authority Florida lawhad vested in the Florida secretary of state andthe Florida circuit courts. Chief Justice Rehnquistconcluded that the Florida Supreme Court “sig-nificantly departed from the statutory framework

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2. What happened when Gore demanded a manu-al recount? Do you think a hand recount ismore accurate than a machine recount? Explain.

3. A lawsuit was brought to demand an exten-sion of time to report the results of the handrecount. This case ended in a decision by theU.S. Supreme Court on December 1. Whatdecisions were made by the trial court,Florida Supreme Court, and U.S. SupremeCourt? Which of these decisions do youthink was correct? Why?

4. Gore brought another lawsuit on November27. What were the grounds for this suit? Howdid the trial court rule? The Florida SupremeCourt? The U.S. Supreme Court? A concur-ring and four dissenting opinions were alsowritten in Bush v. Gore. Which of the opin-ions—court, concurring, or dissenting—seemsmost reasonable? Why?

A C T I V I T Y

Applying Bush v. GoreAlthough the Supreme Court in its Bush v. Goreruling stated that the case should not be consid-ered as precedent, new cases have arisen challeng-ing election results. None of these cases hasreached the Supreme Court. But all of them havecited Bush v. Gore as precedent and claimed viola-tions of equal protection. Below are types ofcases that have arisen. Imagine that in each case,a statewide election has concluded with extremelyclose results. The losing candidate in the electionis challenging the results citing Bush v. Gore andclaiming a violation of equal protection.

Your group is the U.S. Supreme Court, and you willdecide the case assigned to you. Do the following:

1. Reread and discuss the decision of the courtin Bush v. Gore.

2. Read your assigned case.

3. Apply the decision in Bush v. Gore to yourcase. Decide whether the case violates theequal protection clause.

Issues to Consider ConcerningBush v. GoreThe decision in Bush v. Gore raised many issues.One of the most important was whether thecourt was correct in finding a denial of equalprotection. Seven justices expressed concern overa denial of equal protection from counting voteswithout uniform standards. Yet Justices Souterand Breyer, who shared this concern with themajority, did not file opinions “concurring inpart and dissenting in part,” but rather just dis-sented. How, exactly, was equal protectiondenied?

Another major issue is whether the court has cre-ated a new principle of equality in voting. Willthis principle be the basis for future successfulchallenges to variations within a state in electionpractices? The court stated that it was decidingonly the issue before it and not setting a prece-dent. But its ruling has led to lawsuits across thecountry arguing that variations within a state inconducting elections violate equal protection.

Finally, another important issue is whether thecourt was justified in ending the counting inFlorida. The court, in its per curiam opinion, saidthat the Florida Supreme Court had indicated thatit wanted to follow the December 12 deadline setby the federal “safe harbor” statute. Since it wasDecember 12, the Supreme Court ordered an endto the counting. But because it was an issue ofFlorida state law, should the Supreme Court havesent the case back for the Florida Supreme Courtto decide the content of Florida law under theunprecedented circumstances?

On December 13, 2000, the day after Bush v. Gorewas decided, Al Gore conceded the election toGeorge W. Bush. For the first time in history, theSupreme Court had, in effect, decided a presiden-tial election.

For Discussion1. In the 2000 election, what did the first count

of Florida’s votes show? On what basis did AlGore demand a recount? What did themachine recount show?

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proper instructions and in others they were not.A lawsuit has challenged the election, claimingthat voters who did not receive the properinstructions were denied equal protection.

State D. This state mandates the use of votingmachines. In most of the state, election officialsdistributed enough machines to most precincts.But in about one-quarter of the state, officialsdid not distribute enough machines. This result-ed in long lines and huge delays discouragingmany voters in these precincts from voting. Alawsuit has challenged the election, claiming vot-ers in precincts without sufficient votingmachines were denied equal protection.

State E. Provisional ballots are those cast by peo-ple who polling officials cannot find on thevoter lists. After providing identification, a votercan cast a provisional ballot and voting officialslater will check to see if that person is indeedentitled to vote. State E election officials failed todistribute sufficient quantities of provisional bal-lots. Poll workers in some precincts improvisedand allowed provisional voters to fill out blankpieces of paper. In other precincts, poll workerssimply informed provisional voters that theycould not vote. A lawsuit has challenged the elec-tion, arguing that those provisional voters turnedaway from the polls were denied equal protection.

State F. This state mandates voting machines. Inseveral counties, the election officials decided todistribute the same number of voting machinesto each precinct regardless of age, education level,and literacy of the voters in each precinct.Precincts with large numbers of elderly reportedlong lines and tremendous delays. Many peoplein these precincts were discouraged from voting.A lawsuit has challenged the election, claimingthat the elderly voters in those districts weredenied equal protection.

4. If you find an equal protection violation,decide on an appropriate remedy for the case.This could be a machine recount, a manualrecount, a new election, or some other reme-dy appropriate for the case.

5. Be prepared to report to the class your deci-sion and your reasons for it.

CasesState A. In this state, half the voters use modernvoting machines, but another half use punch-card machines, which are subject to greatererrors. A lawsuit has challenged the election say-ing that the voters in the half of the state usingpunch-card machines were denied equal protec-tion.

State B. Provisional ballots are those cast by peo-ple who polling officials could not find on thevoter lists. State B requires that the voter provide“proper identification.” Then the voter can cast aballot and voting officials later will check to see ifthat person is indeed entitled to vote. Voters in thestate are complaining because officials throughoutthe state are not accepting the same things as prop-er identification. A provisional ballot submittedwith the same kind of identification might beaccepted in one county and rejected in another. Alawsuit has challenged the election, claiming thatvoters were denied equal protection when their pro-visional ballots were refused because of “improperidentification” when voters in other areas wereallowed to cast provisional ballots based on thesame type of identification.

State C . Provisional ballots are those cast by peo-ple who polling officials could not find on thevoter lists. State C has a strict rule that votingofficials may accept provisional ballots only ifthe provisional voter turns in the ballot to thecorrect precinct. State guidelines require that pollworkers instruct provisional voters whichprecinct to vote in based on their home address.In some polling places, precinct workers ignoredthese guidelines and failed to notify provisionalvoters of their proper precinct. As a result, insome precincts, provisional voters were given the

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